Babu vs The State Of Karnataka
2021 Latest Caselaw 3526 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH DAY OF OCTOBER, 2021

                           BEFORE

         THE HON'BLE MR.JUSTICE K.SOMASHEKAR

             CRIMINAL APPEAL No.1154/2021

BETWEEN:
BABU
S/O VENKATASHAMI,
AGED ABOUT 28 YEARS,
POLICE CONSTABLE,
SIDLAGHATTA RURAL POLICE STATION,
SIDLAGHATTA,
DISTRICT CHIKKABALLAPURA,
AND ALSO R/AT HOOGERE VILLAGE,
HARLAHALLI POST,
TALUKA AND DISTRICT KOLAR - 562 101.
                                          ... APPELLANT

(BY SRI TIGADI VEERANNA GADIGAPPA, ADVOCATE)

AND:
1.     THE STATE OF KARNATAKA,
       REPRESENTED BY SUB
       INSPECTOR OF POLICE,
       SIDLAGHATTA TOWN POLICE STATION,
       TALUKA SIDLAGHATTA,
       CHIKKABALLAPUR DISTRICT.
       REPRESENTED BY
       STATE PUBLIC PROSECUTOR,
       HIGH COURT OF KARNATAKA,
       BENGALURU - 560 001.

2.     DR. NITHYA SHREE,
       AGE 26 YEARS,
                                 2



     MEDICAL OFFICER,
     GOVERNMENT HOSPITAL,
     C R LAYOUT, SIDLAGHATTA
     DISTRICT CHIKKABALLAPURA - 562 105.
                                              ... RESPONDENTS

(BY SRI RAHUL RAI K., HCGP FOR R1;
    R2 SERVED AND UNREPRESENTED)

      THIS CRL.A. IS FILED U/S. 14A OF SC/ST (POA) ACT AND
SEC.438 OF CR.P.C., PRAYING TO ALLOW THE PETITION BY
GRANTING HIM ANTICIPATORY BAIL IN THE EVENT OF HIS
ARREST IN SIDLAGHATTA TOWN P.S., CR.NO.51/2021 FOR THE
OFFENCE P/U/S 376(N), 493 OF IPC AND SEC.3(1)(W) AND
3(2)(VA) OF SC/ST (POA) ACT PENDING ON THE FILE OF THE
LEARNED I-ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA.

    THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal has been preferred by the appellant /

accused under Section 14A of SC & ST (POA) Act, 1989,

challenging the impugned order passed by the I-Additional

District and Sessions Judge, Chikkaballapur District in

Crl.Misc.No.524/2021 dated 25.05.2021 by urging various

grounds.

2. Heard Sri.Tigadi Veeranna Gadigeppa, learned

counsel for the appellant, who is present before the Court

physically and submits that copy of the appeal memo has

already been furnished inclusive of furnishing of PF for

issuance of process against respondent No.2, who is the

complainant/victim. This submission made by the learned

counsel is placed on record.

3. Learned HCGP for respondent No.1-State is

present before the Court physically.

4. In this matter, notice has been served upon

respondent No.2 namely Dr.Nithya Shree but remained

absent.

5. Section 301 of Code of Criminal Procedure:

Appearance by Public Prosecutors. Any case initiated by the

police having the jurisdiction, the prosecutor has to appear

on behalf of the State in any stage, either inquiry, trial or

appeal. Therefore, in this matter, respondent No.2, who is

the gravamen of the incident narrated in her complaint and

based upon her complaint, the criminal law was set into

motion by registering the case in Cr.No.51/2021 for the

offences under Sections 376 (N) and 493 of Indian Penal

Code, 1860 and Sections 3(1)(w) and 3(2)(va) of the Scheduled

Caste & Scheduled Tribes (Prevention of Atrocities) Amended

Act, 2015.

6. The object under the Special enactment

Chapter-IVA of the SC & ST (POA) Act, 1989, the process in

terms of notice against the complainant/victim/dependants

are mandatory to provisions.

7. Keeping in view the aforesaid special provision,

even in Chapter-IVA of the SC & ST (POA) Act, 1989, the

process has been issued against respondent No.2, who is the

gravamen of the incident and despite of effective service upon

respondent No.2, she remained absent.

8. Therefore, keeping in view Section 301 of Code of

Criminal Procedure that learned HCGP for respondent No.1-

State, who is present before the Court physically, who also

take care respondent No.2, who is the gravamen of the

incident narrated in her complaint by approaching the police

and registering the case in Cr.No.51/2021, heard his

arguments on behalf of respondent No.1 inclusive of

respondent No.2-Dr.Nithya Shree, who is the gravamen of the

incident narrated in her complaint by approaching the

Shidlaghatta Town Police Station, Chikkaballapur District

whereby, registering the case in Cr.No.51/2021, which

reflected in the FIR said to have been recorded by the police.

9. Whereas, under this appeal, learned counsel for

the appellant submits by conformity with the grounds urged

in this appeal filed under Section 14A of the SC & ST (POA)

Act, 1989 and Section 438 of Code of Criminal Procedure by

challenging the order passed by the I-Additional District and

Sessions Judge, Chikkaballapur District in Crl.Misc.

No.524/2021 dated 25.05.2021.

10. However, the accused by avocation Police

Constable in Shidlaghatta Town Police Station,

Chikkaballapur District has sustained fracture to his right

femur bone. This submission made by the learned counsel for

the appellant is placed on record.

11. But it is relevant to refer Clause (2) of Section 18A

of the SC & ST (POA) Act, 1989, which reads thus:

"The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."

12. Even in Section 18A of the said Special provision

introduced in the special enactment, it indicates as no

enquires or approval required. For the purposes of this Act,

preliminary enquiry shall not be required for registration

of a First Information Report against any person; or (b) the

investigating officer shall not require approval for the arrest, if

necessary, of any person, against whom an accusation of

having committed an offence under this Act has been

made and no procedure other than that provided under this

Act or the Code shall apply.

13. Section 18A of the Special Enactment is the

mandatory provision insofar as the offences under the Special

Enactment registered against the accused persons. Therefore,

it is deem it appropriate to state that it is not proper to

address in detail in respect of the allegations made against

the accused for disposal of this appeal.

14. But learned counsel for the appellant submits that

the appellant by avocation Police Constable and the crime

came to be registered by the Shidlaghatta Town Police

Station, Chikkaballapur District based upon the complaint

filed by respondent No.2 and the case in Cr.No.51/2021 is

pending for investigation and to proceed in further in

accordance with the relevant provision of Code of Criminal

Procedure. However, it is deem it appropriate to consider the

submission made by the learned counsel for the appellant.

15. In terms of the aforesaid reasons, I proceed to

pass the following:

ORDER

i) Appeal filed by the appellant/accused even does not arise for consideration to grant anticipatory bail as under Section 438 of Code of Criminal Procedure as there is an expressive bar for the specific provision of Section 18A of the SC & ST (POA) Act, 1989. Consequently, this appeal is hereby disposed of in terms of the aforesaid reasons.

ii) Keeping in view the submission made by the learned counsel for the appellant and so also in the peculiar facts and circumstances of the case and more so, the appellant, who is the accused and by avocation, Police Constable suffering from fracture of right femur bone, it is deem it appropriate to state that the appellant/accused is directed to appear before the Special Court i.e., the Court of I-Additional District and Sessions Judge, Chikkaballapur where the case in Cr.No.51/2021 is pending and the appellant/accused shall appear/surrender before the Special Court by filing the necessary application in accordance with relevant provision of Code of Criminal Procedure within a period of

seven days from the date of receipt of copy of this order for seeking relief of bail.

iii) Consequent, upon filing of the application under the relevant provision of Code of Criminal Procedure before the Special Court, the copy of the same shall be furnished to the learned Spl.PP in the Special Court to say or response to that application filed by the accused, if any.

iv) The Special Court is directed to dispose of the bail application filed by the accused on the same day in accordance with law on merits. Accordingly, ordered.

v) Whatever observations made in this judgment/order even referring the offences under Indian Penal Code and so also under Special Enactment Act shall not influence in the mind of the Special Court for disposal of the application to be filed by the accused, the same shall be disposed of in accordance with law.

Sd/-

JUDGE VM